EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

09.03.18

RALIA, Inventor Protection Act, STRONGER Patents Act and Other Attacks on PTAB (Because It Raises the Patent Bar)

Posted in America, Deception, Law, Patents at 1:33 am by Dr. Roy Schestowitz

Lobbyists and bribed politicians still attempt to undo patent reform in Washington

Don't enter

Summary: Anti-PTAB legislations (whose sole purpose is to lower patent quality) try to make their way past common sense; the patent microcosm is boosting these while courts carry on doing their job, which nowadays more often than not involves rejection of erroneously-granted US patents

THE USPTO would almost certainly be granting patents like a patent-printing machine if it wasn’t for constant scrutiny from patent courts and groups like the EFF, CCIA and so on. Sadly, as we’ve just noted, 35 U.S.C. § 101 isn’t taken seriously enough by the Office. The new Director, a litigation person whose firm worked for Donald Trump, keeps trying to water it down. It cannot be done unless courts leave an opening/gap to be cherry-picked; as things stand, SCOTUS supports Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and the Federal Circuit gave away nothing but Berkheimer, which the Director (Iancu) was happy to exploit irrespective of the facts (Berkheimer has not changed anything in the courts).

We’ve been carefully watching the latest attacks on patent quality. Watchtroll, for instance, was belatedly catching up with Click-To-Call at PTAB (among other news that may mean patent law firms will carry on rotting away). Robert Schaffer wrote about IPR time-bar* [1, 2] on a couple of occasions and together with his colleague Joseph Robinson he was covering the matters/affairs of the Federal Circuit (CAFC) in light of recent cases, such as this 35 U.S.C. § 285 case (typically about whether the accused gets awarded legal fees by the trigger-happy accuser). We’ve pretty much covered all these cases before or at least mentioned these in passing. Joseph Robinson wrote about another important CAFC case — one wherein we saw software patents invalidated by a high court. The defendant, BuySeasons, did a good job leveraging the law against US Patents numbers 6,035,294, 6,243,699, and 6,195,652 [1, 2]. Quoting Watchtroll:

On August 15, 2018, the Federal Circuit affirmed the invalidation of BSG Tech LLC’s (“BSG”) patents as ineligible subject matter. See BSG Tech LLC v. Buyseasons, Inc., No. 2017-1980, 2018 WL 3862646 (Fed. Cir. Aug. 15, 2018) (before Reyna, Wallach, and Hughes, J.) (opinion by Hughes, J.).

BSG asserted three patents with similar specifications that were directed to a “self-evolving generic index” for organizing information stored in a database — U.S. Patents No. 6,035,294, 6,243,699, and 6,195,652. The patents were “self-evolving” because users of the database could “add new parameters for use in describing items”, with guidance from the system, which would allow the database to be searched according to the new and existing parameters.

We generally prefer not to quote Watchtroll, but in order to understand what patent maximalists are up to it’s helpful to keep an eye on Watchtroll. Last week they used the term “IP Assets” in the headline (three lies in two words). Katharine Wolanyk generally alludes to universities using taxpayers-funded research to feed patent trolls that then attack the public as “Legal Finance” (what a breathtaking euphemism!). Her innovation seems to be that of euphemisms for bad practices that should be banned if not severely punished for (penalties, fines, maybe even sanctions).

Fenwick & West LLP’s Nina Srejovic and Charlene M. Morrow wrote a few days ago about IPRs in relation to appeals; This too was about a recent CAFC case. To quote:

The Federal Circuit further restricted a petitioner’s ability to appeal a decision by the Patent and Trademark Appeal Board upholding the validity of a patent. The court this month found in JTEKT v. GKN Automotive that a competitor who filed a petition for inter partes review could not appeal the PTAB’s validity determination because its product design was not definite enough to create a concrete and substantial risk of infringement or the likelihood of a claim of infringement. If this line of decisions stands, it will make it harder for competitors to clear the field of conflicting patents that they believe are invalid, as there would be no ability to appeal from an adverse Board decision.

They generally try anything they can to thwart PTAB and thus defend invalid/bogus patents from scrutiny. Gene Luoma, writing for Watchtroll yesterday (a Sunday), promotes the misleadingly-named “Inventor Protection Act” — one among several bills striving to take down patents like his. “This is why we need your support to help us restore our patent rights,” he concluded, mistaking patents for “rights” (they’re not rights, technically and legally speaking). He pleaded: “Please help us in our fight to pass H.R. 6557, the Inventor Protection Act, which has been introduced into the House of Representatives. After a decade of destruction of our patent rights, this bill restores patent rights to inventors like me who own their patents, helping us to continue supporting our families with the money earned from our inventions.”

This is nonsense. He also uses his disability to add an angle that has nothing to do with his patent/s; sympathy-garnering exercise at best. If his patent is worth what he believes, why should he fear PTAB? In our experience, people who loathe PTAB are those whose patents are of questionable quality (and deep inside they know it).

A few days earlier the American Enterprise Institute wrote about RALIA, another anti-PTAB bill. Michael Rosen from this patent zealots’ front group (American Enterprise Institute has always been misleadingly named) is trying to reduce patent quality and help patent trolls, not enterprises. Here is what he wrote (soon to be boosted by patent maximalists):

Shortly after several new patent reform bills were introduced in Congress over the summer, a new, even more radical piece of legislation has entered the scene.

[...]

RALIA would also rewrite the statute on patent eligibility, making it easier to obtain software and so-called business method patents, a process that the Supreme Court’s 2014 landmark Alice decision has strongly affected. The legislation contends that “the Supreme Court’s recent jurisprudence concerning subject matter patentability has harmed the progress of science and the useful arts” and loosens its strictures.

No, it does the exact opposite. But don’t let facts get in the way of career lobbyists.

Russell Slifer, part of the patent microcosm, then defines “bad” as what’s bad for the litigation ‘industry’. The lobbyists’ media of choice, The Hill, seems very happy if not eager to let these vultures do their lobbying. Slifer promotes the STRONGER [sic] Patents Act as follows: “One good place to start is the Support Technology and Research for Our Nation’s Growth and Economic Resilience (STRONGER) Patents Act, H.R. 5340, introduced by Reps. Steve Stivers (R-Ohio) and Bill Foster (D-Ill.) and its companion Senate bill, S.1390, introduced last year by Sen. Chris Coons (D-Del.). These bills address some of the negative unintended consequences of the 2011 America Invents Act. To truly return America as a world leader in intellectual property protection, Congress must resolve to reverse the Supreme Court and allow our new industries to protect their innovations in the U.S, not China and Europe.”

These are all just anti-PTAB bills whose net effect is reduction in quality assessment and decline in patent quality. They rely on the perception that there’s anger, that there’s a scandal, and that there are feuds.

Alluding to last month’s RPX setback and Judge Reyna’s role in an earlier case, McDermott Will & Emery’s Brian A. Jones wrote about news several months too late (almost two months). Why now? To quote:

Addressing whether an inter partes review (IPR) petition was time barred under 35 USC § 315(b), the US Court of Appeals for the Federal Circuit vacated and remanded a finding by the Patent Trial and Appeal Board (PTAB) that the petitioner was not a real party in interest to the entity that had been served with an infringement complaint in district court more than one year earlier. Applications in Internet Time, LLC v. RPX Corp., Case Nos. 17-1698, -1699, -1701 (Fed. Cir. July 9, 2018) (O’Malley, J) (Reyna, J, concurring).

Applications in Internet Time (AIT) sued Salesforce.com, a software company, for patent infringement. Salesforce was served with a copy of the complaint on November 20, 2013.

[...]

Judge Reyna wrote separately to point out an independent ground for vacating the PTAB’s decision, namely that it failed to address whether RPX was also a “privy” of Salesforce. A petitioner is time barred under § 315(b) from filing a petition more than one year after the “petitioner, the real party in interest, or privy of the petitioner is served with a complaint.” Judge Reyna explained that a number of additional factors must be considered to determine privity, including whether a legal relationship exists between the parties or whether one party acted as a proxy/representative for the other party. In the case of RPX and Salesforce, a contractual relationship existed, and RPX may have been acting as Salesforce’s proxy. Therefore, Judge Reyna would have instructed the PTAB to also thoroughly review whether RPX and Salesforce were in privity in these circumstances.

This is one of those rare PTAB cases where patent maximalists have something to gain. They will carry on cherry-picking and then boosting such cases. Knowing that politicians soon return to work (many come back tomorrow), they want to provoke them into endorsement of anti-PTAB bills.
___
* In his latest PTAB post, Kevin E. Noonan provided a more balanced interpretation, including some background:

Patent law has traditionally been considered to be fraught with traps for the unwary, which in practice just means that it is unwise to assume anything (see Carl S. Koening, “Clarifying Patent Terminology and Patent Concepts – An Introduction to Some Basic Concepts and Doctrine,” 15 Cath. U. L. Rev. 1 (1966)). Petitioner for an inter partes review proceeding, Vizio, Inc., v. ATI Technologies ULC suffered the consequences of one of those traps, when its petition for review of U.S. Patent No. 7,633,506 was deemed untimely under 35 U.S.C. § 315(b) because the petition was not filed within one year of Patent Owner filing suit against Petitioner Vizio. While a seemingly simple docketing matter, in this case the error arose over when (i.e., what date) the complaint was filed.

As set forth in the Board’s Decision denying institution, the facts are these. Vizio filed its IPR petition on February 1, 2017, one year after receiving the complaint. Patent Owner filed an affidavit of service, establishing that Patent Owner had mailed the complaint to Vizio on January 30, 2017. The question before the Board was whether the one-year time period under § 315(b) for filing an IPR petition ran from the date of mailing by Patent Owner or the date of receipt of the complaint by Petitioner Vizio.

To answer this question, the Board looked to Federal Rule of Civil Procedure 4(h)(1)(A), which states that a corporation is served “in the manner prescribed by Rule 4(e)(1) for serving an individual.” Fed. R. Civ. P. 4(e)(1) states that service on an individual under the Rules is done “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located” (or where service is made). Thus, the Board reasoned, the time and manner where service was accomplished was a matter of Delaware law (where the Patent Owner was incorporated).

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 21/9/2019: Plasma 5.17 Beta in Kubuntu, Cockpit 203

    Links for the day



  2. IBM Cannot Become a True Friend of Free Software Because of Its Current Patent Policy

    IBM needs to quit bullying people/companies with software patents; that would help towards appeasement of IBM critics and sceptics



  3. When Patent 'Professionals' Sound Like Children Who Learned to Parrot Some Intentionally-Misleading Buzzwords, Myths and Lies

    With buzzwords like "AI" and misleading terms like "IP" the litigation zealots are trying to convince themselves (and the public) that software is a physical thing and a "property" which needs "protecting" from "theft"; it doesn't seem to bother these people that copyright law already covers software<



  4. The European Parliament Needs to Become More Outspoken About EPO Abuses

    There are few encouraging signs in Europe right now because the EPO's disregard for patent law (striving to just grant as many patents as possible) earned it much-needed backlash from the European Parliament



  5. Links 19/9/2019: German Federal Ministry of the Interior Wants FOSS, Top Snaps Named

    Links for the day



  6. Buying the Voices of 'Linux' People to Repeat Microsoft's Talking Points While Removing Our Icons and Leaders (Calling Them Sexist)

    The dirty games leveraged by several companies including Microsoft target charismatic people who are essential for morale and leadership; these tactics aren't particularly novel



  7. When the EPO Sees Itself as Above European Law, Grants Patents in Defiance of the EPC (Its Founding Document) and Violates Staff's Labour Rights/Protections (International Law)

    The absurd state of affairs at the EPO has reached the point where laws at every level are being violated and even judges are being threatened or vainly ignored; the EU is belatedly trying to tackle these issues, which have actually cost its credibility a great deal and threaten the perception of Rule of Law at multiple levels



  8. Links 19/9/2019: Samba 4.11.0 and Kubernetes 1.16

    Links for the day



  9. Update on Koch v EPO: Internal Appeals Committee (IAC) Composition Still Likely Illegal

    An important EPO case, concerning a dismissed staff representative, shows what ILO-AT and the EPO's Internal Appeals Committee boil down to



  10. Links 18/9/2019: Fedora Linux 31 Beta, PCLinuxOS 2019.09 Update

    Links for the day



  11. Links 17/9/2019: CentOS 7.7 and Funtoo Linux 1.4 Released

    Links for the day



  12. EPO is Not European

    Internationalists and patent trolls are those who stand to benefit from the 'globalisation' of low-quality and law-breaking patents such as patents on algorithms, nature and life itself; the EPO isn't equipped to serve its original goals anymore



  13. The EPO's Central Staff Committee and SUEPO (Staff Union) Respond to “Fascist Bills” Supported by EPO President António Campinos

    Raw material pertaining to the latest Campinos "scandal"; what Campinos said, what the Central Staff Committee (CSC) said, and what SUEPO said



  14. Storm Brewing in the European Patent Office After a Hot Summer

    Things aren't rosy in EPOnia (to say the least); in fact, things have been getting a lot worse lately, but the public wouldn't know judging by what media tells the public (almost nothing)



  15. Why I Once Called for Richard Stallman to Step Down

    Guest post from the developer who recently authored "Getting Stallman Wrong Means Getting The 21st Century Wrong"



  16. As Richard Stallman Resigns Let's Consider Why GNU/Linux Without Stallman and Torvalds Would be a Victory to Microsoft

    Stallman has been ejected after a lot of intentionally misleading press coverage; this is a dark day for Software Freedom



  17. Links 16/9/2019: GNU Linux-libre 5.3, GNU World Order 13×38, Vista 10 Breaks Itself Again

    Links for the day



  18. Links 16/9/2019: Qt Quick on Vulkan, Metal, and Direct3D; BlackWeb 1.2 Reviewed

    Links for the day



  19. Richard Stallman's Controversial Views Are Nothing New and They Distract From Bill Gates' Vastly Worse Role

    It's easier to attack Richard Stallman (RMS) using politics (than using his views on software) and media focus on Stallman's personal views on sexuality bears some resemblance to the push against Linus Torvalds, which leans largely on the false perception that he is sexist, rude and intolerant



  20. Links 16/9/2019: Linux 5.3, EasyOS Releases, Media Backlash Against RMS

    Links for the day



  21. Openwashing Report on Open Networking Foundation (ONF): When Open Source Means Collaboration Among Giant Spying Companies

    Massive telecommunications oligopolies (telecoms) are being described as ethical and responsible by means of openwashing; they even have their own front groups for that obscene mischaracterisation and ONF is one of those



  22. 'Open Source' You Cannot Run Without Renting or 'Licensing' Windows From Microsoft

    When so-called ‘open source’ programs strictly require Vista 10 (or similar) to run, how open are they really and does that not redefine the nature of Open Source while betraying everything Free/libre software stands for?



  23. All About Control: Microsoft is Not Open Source But an Open Source Censor/Spy and GitHub/LinkedIn/Skype Are Its Proprietary Censorship/Surveillance Tools

    All the big companies which Microsoft bought in recent years are proprietary software and all of the company’s big products remain proprietary software; all that “Open Source” is to Microsoft is “something to control and censor“



  24. The Sad State of GNU/Linux News Sites

    The ‘media coup’ of corporate giants (that claim to be 'friends') means that history of GNU/Linux is being distorted and lied about; it also explains prevalent lies such as "Microsoft loves Linux" and denial of GNU/Free software



  25. EPO President Along With Bristows, Managing IP and Other Team UPC Boosters Are Lobbying for Software Patents in Clear and Direct Violation of the EPC

    A calm interpretation of the latest wave of lobbying from litigation professionals, i.e. people who profit when there are lots of patent disputes and even expensive lawsuits which may be totally frivolous (for example, based upon fake patents that aren't EPC-compliant)



  26. Links 15/9/2019: Radeon ROCm 2.7.2, KDE Frameworks 5.62.0, PineTime and Bison 3.4.2

    Links for the day



  27. Illegal/Invalid Patents (IPs) Have Become the 'Norm' in Europe

    Normalisation of invalid patents (granted by the EPO in defiance of the EPC) is a serious problem, but patent law firms continue to exploit that while this whole 'patent bubble' lasts (apparently the number of applications will continue to decrease because the perceived value of European Patents diminishes)



  28. Patent Maximalists, Orbiting the European Patent Office, Work to 'Globalise' a System of Monopolies on Everything

    Monopolies on just about everything are being granted in defiance of the EPC and there are those looking to make this violation ‘unitary’, even worldwide if not just EU-wide



  29. Unitary Patent (UPC) Promotion by Team Battistelli 'Metastasising' in Private Law Firms

    The EPO's Albert Keyack (Team Battistelli) is now in Team UPC as Vice President of Kilburn & Strode LLP; he already fills the media with lies about the UPC, as one can expect



  30. Microsoft Targets GNU/Linux Advocates With Phony Charm Offensives and Fake 'Love'

    The ways Microsoft depresses GNU/Linux advocacy and discourages enthusiasm for Software Freedom is not hard to see; it's worth considering and understanding some of these tactics (mostly assimilation-centric and love-themed), which can otherwise go unnoticed


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts